National College for DUI Defense General Member - Badge
National College for DUI Defense State Delegate - Badge
Avvo 10 DUI - Badge
Alabama Criminal Defense Lawyers Association - Badge
DUI Defense Lawyers Association - Badge
Martindale Hubbell 2018
Martindale-Hubbell - Badge
Martindale-Hubbell Client Reviewed - Badge

Driving Under the Influence (DUI) Defense


Driving Under the Influence (DUI) laws are getting stricter with each passing year, and the consequences of conviction are increasingly severe. In Alabama, a DUI arrest triggers both a criminal case and a Department of Public Safety administrative case. Because even a “first offense” DUI arrest can lead to fines, court costs, jail time, and driver license suspension, anyone arrested for DUI needs a qualified and experienced attorney protecting their rights.

Although both cases require expert legal help, the Department of Public Safety administrative case is far more time-sensitive. Motorists holding an Alabama driver license arrested for DUI have only 10 days from the date of arrest to request an administrative hearing. If the administrative hearing is not formally requested within 10 days, the driver license suspension will automatically take effect approximately 45 days later. However, if a petition for administrative hearing is filed within the ten days time, the suspension action will be stayed [held in abeyance] until the driver license hearing is conducted. With effective legal representation assisting the motorist, the hearing may be decided in the motorist’s favor and the driver license not ordered suspended.1

Type of DUI Offenses

The criminal case involving an alcohol-related DUI arrest allows the prosecutor to select two different or alternative methods of proof. The first type of DUI violation is referred to as “driving under the influence” violation and is focused on whether the driver was physically and/or mentally impaired by alcohol and was operating a vehicle in an “unsafe manner.”

The second type of DUI violation is a violation of the state’s “per se” law which is solely concerned with the driver’s blood alcohol content (BAC) being .08% percent or greater at the time the test was administered. Prior to trial the prosecution must elect which method of proof, or alternate section of the statute, will be prosecuted before the court.

There are different BAC standards for persons operating a commercial motor vehicle or a school bus or day care bus. The legal limit is .04% BAC for commercial vehicle drivers and .02% BAC for bus drivers and day care drivers. Note that these blood alcohol levels are very low concentration levels, and equal 2/100 of 1% alcohol in a person’s bloodstream.

The most common type of DUI offense is charged by the “under the influence” violation. The elements of proof are concerned with whether the driver was impaired by a sufficient amount of alcohol to be an unsafe driver. The Alabama Supreme Court has stated that impairment means having consumed sufficient quantity of alcohol so as to “affect his ability to operate a vehicle in a safe manner.” It is not necessary that the prosecutor prove the motorist was intoxicated or physically “drunk.” However, the prosecutor must prove some degree of impairment. Prosecutors will use circumstantial evidence, such as the results of field sobriety tests and the arresting officer’s observations of the driver to prove this allegation. Fortunately, this type of evidence is highly subjective and open to interpretation, and can be effectively challenged on cross-examination of the officer by a skilled DUI defense attorney.

The second type of alcohol-related DUI offense – violating the state’s per se law – must be proven by an “evidentiary” test. Most commonly, the prosecution will offer into evidence the results of a breath test obtained from the state approved breath test instrument. In Alabama, all evidentiary breath test instruments are referred to as Draeger instruments, and are the property of the Department of Forensic Science, an independent state agency. The Draeger instrument is unique among breath testing devices in that it analyzes exhaled breath by two different methods of analysis simultaneously, using both infrared light absorption and electro-mechanical fuel cell oxidation to determine breath alcohol content. When used properly, the Draeger instrument is a highly accurate testing instrument.

In some cases, a blood sample will be obtained from the motorist and the results offered into evidence. The driver’s BAC is thereby determined by scientific measurement at the Department of Forensic Science laboratory or other reference laboratory. However, both breath and blood evidentiary tests are open to challenge by a skilled defense attorney trained in the rules of evidence and the state law and state regulations governing the admissibility of evidentiary tests. For example, when dealing with blood test evidence, strict chain of custody requirements are imposed under Alabama law, and the extraction, storage, handling, and testing of blood samples must first be established before the results may be admitted into evidence.

It is a common misunderstanding that law enforcement officers must have breath or blood test evidence for a motorist to be convicted for DUI. That is false. In DUI cases involving the “under the influence” violation, the evidentiary test is considered “corrobative” or supplemental evidence. There is no requirement under Alabama law for the prosecution to obtain an evidentiary test in order to convict a motorist for DUI for the “under the influence” violation. However, if the motorist is charged with the per se violation, an evidentiary test must be offered by the prosecution as proof of impairment.

The state statute governing chemical tests sets forth legal presumptions concerning the blood alcohol concentration taken from the motorist at the time the test was given. A “presumption” is a legal term meaning the finding a basic fact gives rise to the existence of the presumed fact. Under Alabama law, it is presumed that a motorist was driving under the influence of alcohol if the test result obtained was .08% or greater. However, this presumption is “rebuttable,” meaning the court can disregard the statutory presumption if facts and evidence are introduced by the defense counsel that cast doubt on the accuracy and reliability of the test administration or the credentials of the test operator.

Alabama law enforcement officers can lawfully make a DUI arrest without actually seeing the motorist drive or operate a vehicle. Alabama law uses the term “actual physical control” which means that under Alabama’s DUI law, just being present in a vehicle and capable of placing the vehicle in operation may be sufficient legal basis to make an arrest for DUI. Actual physical control is legally defined as the exclusive physical power, and present ability, to operate, move, park, or direct whatever use or nonuse is to be made of a motor vehicle at the moment, as determined by the totality of the circumstances. For instance, a person who meets one of the above conditions and who is asleep in or simply sitting in a motor vehicle may be lawfully arrested for DUI. Also, it should be noted that a motorist does not have to be operating a vehicle on a public highway to be lawfully arrested for DUI. If the motorist was arrested by the police on private property, such as a store parking lot or on land adjacent to the highway, and was in actual physical control of a vehicle, that may be sufficient to make a lawful arrest.

In addition to the two alcohol-related DUI offenses, the state’s DUI statute also contains three other types of DUI offenses:

  • Driving under the influence of a controlled substance
  • Driving under the combined influence of alcohol and a controlled substance
  • Driving under the influence of any substance which impairs the mental or physical faculties

For persons under the age of 21, there is a special DUI section that makes it illegal and punished as a separate offense to operate a vehicle with a blood alcohol level between .02% and .08%, but provides reduced penalties for violation of this “under the age of 21 years” section.

1 Note: This law, called the Administrative License Suspension Act, only deals with individuals holding an Alabama driver license. Persons arrested for DUI holding an out-of-state driver license are not subject to the license removal procedure established under the Administrative License Suspension Act.

Do Not Delay; Call Today!

Fill out the contact form or call us at (334) 277-3974 to schedule your consultation.

Leave Us a Message